This guide is intended to stimulate discussion between an employee and their employer when MS progresses over time and their symptoms begin to impact their ability to work efficiently.
Compiled by: Luisa Pretti – Registered General and Psychiatric Nurse, Insurance Disability Assessor, Dr Tony Davidson – Organisational Health Consultant; and Justine Del Monte – Specialist Labour Law Attorney
The aim of such a discussion is to keep the person with MS as productive as possible so that they can continue to work as long as possible, without the employer experiencing undue hardship.
It is advisable to undertake this process with the input and recommendations of appropriate treating health professionals, such as the Neurologist, Physiotherapist, and Occupational Therapist.
The legislation which links to this discussion includes:
• LABOUR RELATIONS ACT – LRA
• EMPLOYMENT EQUITY ACT – EEA
• CODE OF GOOD PRACTICE – CGP
The Employee:
- You do not have to disclose your diagnosis to your employer when symptoms do not interfere with your work. However, early disclosure helps to lay a foundation of trust and encourages open discussion and co-operation as symptoms progress.
- Disclosure should be supported with good background documents on the issue of MS, to help the employer understand the condition, and plan for any work adaptation, accommodation or potential extra costs which may need to take place.
- It is your responsibility to help your employer understand your changing needs or increased absenteeism in order to achieve similar work output and performance, and your employer may be assisted in this by obtaining input from your health professionals.
- By being forthcoming with the facts, the employer will be able to adapt the job or the workplace to meet your needs. Adaptations may be as simple as moving you closer to the bathroom or allowing you an extra rest period during the day to help manage your fatigue.
- However, you need to understand that the time may come when the employer will need to reduce your salary as your work output reduces.
What you can do to help yourself:
- Ensure that you set up sufficient appropriate personal and work-related support to enable you to continue to be a successful employee in the workplace for as long as possible. Be careful to choose wisely with whom you would like to share personal information.
- Practise a healthy lifestyle and maintain a good balance regarding diet, exercise, and rest.
- Take treatment as prescribed and engage with your health professionals to understand why they have recommended rehab programmes. Your health professionals do not necessarily understand your workplace and your work demands, so be sure to work with them to set up practical programmes which accommodate your work demands.
- Engage with workplace Occupational health and employee assistance programmes (EAP).
- Pro-actively learn about your rights, benefits and obligations as an employee but also understand those of your employer.
- Thoroughly explore your employee benefits such as medical aid, chronic medication benefit, disability, and life cover. If you can, buy up to a better benefit structure to access better drugs and more day-to-day benefits such as physiotherapy. Although MS is regarded as one of the Prescribed minimum benefit diseases, access to the more expensive drugs such as interferon is much easier if you are on a better benefit structure.
The Employer
- Familiarise yourself with the above legal documents and seek technical input as required. Input and support for this process is available from the Department of Labour, and your own Human Resources and Industrial Relations departments, as well as EAP.
- Not knowing legislation is not an excuse for discrimination against, or unfair dismissal of people with disabilities.
- Having a medical diagnosis which the general public may consider to be a disability is NOT the same as being incapable of working.
- While the goal for the employer is to ‘accommodate’ people with disabilities in the workplace and ensure that they are maintained in a position in keeping with their training, experience and intellectual abilities, the employer is not expected to incur undue hardship or excessive expense. The expectation should be that larger companies can be more flexible with accommodation than smaller ones.
- Achieving accommodation may be as simple as providing a workstation closer to the bathroom, putting in a ramp for a wheelchair, allowing the employee to rest during the day, or work flexible or shorter hours (with the appropriate pay adjustment). Job sharing is another creative alternative, depending on the needs of the employee and the company.
- Engage your employee in discussion as soon as you are aware of an increase in absenteeism, change in work performance or observe any physical changes, as these may be a result of changing health.
- It is the employer’s duty to investigate reasons for reduced performance, but it is also the role of the employee at the appropriate time, to be proactive and disclose that they have been diagnosed with MS.
- As part of the investigation, you should encourage your employee to provide a medical report from their treating health professional. In addition, you may choose an independent health professional from whom you want input (with the employee’s permission). You would be liable for the costs of any additional assessment and report.
- Once your investigation has begun, and a health professional recommends referral of the employee to another health professional e.g. a Physiotherapist or Occupational Therapist, for an evaluation or functional work assessment, this recommendation must be carried out as part of the your investigation. Costs of the initial examination would be for you as the employer.
- The benefits of such an evaluation would be to provide clarity on the employee’s WORK ABILITIES as well as their impairments. The report will include recommendations to both the employer and employee, of potential further rehabilitation and job or work environment adjustments to enable the employee to successfully remain in the workplace.
- The evaluator can also be requested to do a work visit, to assess the employee in their specific work environment.
- Document all the interactions and actions of both parties, as well as why you consider that any accommodations will cause you undue hardship and are therefore not implemented.
Acknowledgement:
Multiple Sclerosis South Africa (MSSA) – Non Smit, Chairperson.
